Tuesday, November 24, 2009

A Case for Federal Benefits

As you know, November 18 the House Oversight and Government Reform Committee voted 23-12 to pass the Domestic Partnership Benefits and Obligations Act (DPBO), an important bill would grant all federal employees (including those overseas, which is of special importance to LGBT Foreign Service families) an array of domestic partner benefits, include vital health insurance benefits.

In today's Federal Diary in the Washington Post, Joe Davidson discusses that and two recent court cases that make compelling arguments for federal benefits for same-sex spouses:

Rationale builds for same-sex benefits law

Two federal appellate court judges issued separate rulings last week that came to the same result: Uncle Sam must permit employee benefits for same-sex spouses of federal workers.

Though the decisions apply only to same-gender married employees of the U.S. Court of Appeals for the 9th Circuit, and that's a pretty small group even in California, the judges' orders boost the arguments of those favoring legislation that Congress now is considering.

Last Wednesday, the same day one of the orders was issued, the House Oversight and Government Reform Committee voted to allow same-sex partners of federal workers to share their employee benefits, including those covering health care, dental and vision services; retirement; and disability. The Senate Committee on Homeland Security and Governmental Affairs is considering a similar measure.

Those bills would have far greater reach than the judicial rulings, yet the judges' words provide a strong case from dispassionate sources for the fundamental reasoning behind the legislation -- basic fairness and equal pay for equal work. In Wednesday's opinion, Judge Stephen Reinhardt said, "the denial of benefits violates the United States Constitution" because it is discrimination on the basis of sex and sexual orientation. The next day, Chief Judge Alex Kozinski wrote: "Karen Golinski has been denied a benefit of federal employment because she married a woman rather than a man." That violates, he added, "this court's guarantee of equal employment opportunity."

The judges also said the Defense of Marriage Act (DOMA), which defines marriage as a union between one man and one woman and was repeatedly invoked by Republicans opposing the House committee action, does not prohibit same-sex benefits.

Both Golinski and Brad Levenson, whose case Reinhardt decided, took their claims through the court's Employee Dispute Resolution Plan. It has its own prohibition against sex discrimination, an additional tool for them to fight the denial of benefits. Golinski is an attorney with the 9th Circuit Court in San Francisco. Levenson is a deputy federal public defender in Los Angeles. Each married a spouse of the same gender during the four-month period when such unions were legal in the state, and they remain legally wed.

Supporters of legislative action argue that blocking benefits for same-sex partners violates the principle of equal pay for equal work. They have comfort in Reinhardt's finding that Levenson suffered a "reduction of his employment benefits." Kozinski reached a similar conclusion regarding Golinski. That reasoning led the judges to grant Levenson and Golinski back pay awards. Levenson also was awarded an amount of money, to be determined, to cover the cost of insuring his husband from this point forward.

Levenson called that "a good remedy," yet one that's "separate, but not equal" because individually purchased health insurance policies are not as good as those secured through a group plan.

In Golinski's case, the Office of Personnel Management was told to rescind directives to insurance carriers that said, according to Kozinski, "Ms. Golinski's wife is not eligible to be enrolled as her spouse under the terms of the Federal Employees Health Benefits Program because of her sex or sexual orientation, or that the plans would violate their contracts with OPM by enrolling Ms. Golinski's wife as a beneficiary."

Kozinski's decision included a copy of a Feb. 20 letter from Lorraine E. Dettman, OPM's assistant director of insurance services programs, to the Administrative Office of the United States Courts. Citing DOMA, Dettman said health insurance programs for federal employees "may not provide coverage for domestic partners, or legally married partners of the same sex, even though recognized by state law."

Dettman's letter came after an earlier ruling by Kozinski in which he ordered the Administrative Office to submit paperwork regarding coverage for Golinski's spouse to Blue Cross/Blue Shield. Not at all pleased with OPM's action, the judge said it assaulted "the autonomy and independence of the Judiciary as a co-equal branch of government."

Kozinski also found that "even as limited by DOMA, the FEHBP permits judicial employees to provide health insurance coverage to their same-sex spouses." Reinhardt said using DOMA to deny benefits to Levenson's husband was unconstitutional and "violates the Due Process Clause of the Fifth Amendment."

Though Dettman's letter was written after President Obama took office, it was before his appointees took over OPM. The Obama administration has found itself in the tricky position of defending DOMA because it is the law, while calling for its repeal and strongly supporting the congressional legislation.

"I'm hopeful the Obama administration will honor this order," Golinski said.

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